Common Sense Codified?

Last week’s post on common sense and the law drew one comment which illustrated the very point that lawyers are often accused of having none. The commenter detailed that one’s definition of “common sense” may differ from another’s, and how can anyone be appointed to define what common sense means?

While many lawyers will make the easier ethical decisions in their careers more by thinking logically and applying common sense than by reading the rules, along the way in history the rule makers have agreed with the commenter to my post, that common sense does not make a cognizable set of rules for the masses to follow, and thus they wrote precursors to today’s American Bar Association Model Rules of Professional Conduct. Either scholars realized that common sense could not be relied upon to guide us, or they agreed with our commenter that no one person can be the arbiter of common sense without rules of general applicability being implemented.

If you have ever stopped to wonder who decided we needed written rules and how we came to have today’s version of common sense codified, look no further.

Professor David Hoffman’s Fifty Resolutions in Regard to Professional Deportment

As explained in far greater detail by Dr. Bill Long on his site than I could ever include here, one of the earliest American jurisprudence precursors to our modern ethical rules was a work by Professor David Hoffman of the University of Maryland. A former practicing attorney who became a law school professor, Professor Hoffman created an ethics course for law students, and in 1836 he wrote Fifty Resolutions in Regard to Professional Deportment as part of that course.

Dr. Long provides the full text of Professor Hoffman’s fifty resolutions here. Suffice it to say that portions of the text of the Resolutions read very much like today’s ethics edicts – treat the profession and the public honestly, be courteous to other members of the bar and the bench, do not take positions adverse to former clients, fulfill promises, and generally be a good and honest lawyer.

However, of note are some Resolutions which directly contradict today’s rules – such as not to plead the statute of limitations to prevent an adversary’s collection of a debt against a client (based on the morality of the owing of the debt), and not to plead age as an infirmity to contract for a debt rightfully owing. How inserting the moral judgment of what does and does not constitute a fair defense to a claim contradicts today’s rule to zealously advocate for one’s client on all available defenses. I guess our commenter was right – if we went by the common sense of Professor Hoffman in 1836, we would be advising clients to give up legal rights in the name of morality. But under this standard, who determines what is moral?

ABA Canons of Professional Ethics

In 1908, the ABA passed its first ethics rules, a set of 32 canons of ethics. These we studied in law school as the first “official” rules. The Canons reflected the times, much like Professor Hoffman’s Resolutions. The Canons governed, largely unchanged, for 60 years. For a detailed look at the Canons, check out attorney James M. Altman’s article in Fordham Law Review.

ABA Model Code of Professional Responsibility

The ABA addressed the need for change and to modernize ethics rules in 1969, when its Special Committee on Evaluation of Ethical Standards issued the Model Code of Professional Responsibility. The Model Code was adopted by most states; it still applies in some. As Mr. Altman points out, by the time the Model Code was written, the Canons were already considered “quaint.” Where perhaps they once codified the common sense of the time, they were outmoded after six decades.

The Model Code itself had plenty of critics who did not think it properly codified appropriate attorney behavior. It contained the most problematic rule, that attorneys must “avoid even the appearance of professional impropriety.” Its critics did not think this rule sufficiently clear to direct behavior; apparently common sense was not enough to save it from vagueness.

ABA Model Rules of Professional Conduct

The ABA replaced the Code with the Model Rules in 1983, then proceeded to issue amendments to the Rules thirteen times since then. From the 32 Canons, we now have 58 Model Rules. Most states have adopted the Model Rules, either in their entirety or substantially so, though some still follow the Model Code and others, such as California, have written their own.

Are The Rules Truly Common Sense Codified?

From 50 Resolutions by Professor Hoffman to 32 Canons to 58 Model Rules, for nearly 200 years American lawyers have been working on codifying how to treat clients, the public and the profession in an ethical manner. Apparently common sense is not enough, and we do need rules to live by, though from the frequent changes to the governing edicts we clearly are not able to agree once and for all what constitutes ethical behavior. Perhaps common sense just keeps changing.

So, much as it is great to see a court such as the California Court of Appeal in Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, refer to “common sense,” it is indeed true that we cannot be governed by common sense alone. Fifty Resolutions, or 32 Canons, or 58 Model Rules, tell us so.

Megan Zavieh is a state bar defense attorney and general ethics counselor admitted to practice in California, Georgia, New York and New Jersey. She is the current Chair of the Executive Committee of the Solo and Small Firm Section of the State Bar of California and focuses her practice on assisting California lawyers. She is also a mother to four insanely fun and independent children ages 2 to 10, a mud-loving Spartan racer, and a runner. She passionately believes that her colleagues should not face disciplinary action alone, so she devotes her non-billable hours to developing new tools for self-represented lawyers to defend themselves before the state bar. She runs a virtual law practice at zaviehlaw.com and blogs at California State Bar Defense.